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05.13.18

CAFC is Under Attack by the Patent Microcosm, Whose Scrutiny is Starting to Resemble PTAB-Bashing

Posted in America, Courtroom, Law, Patents at 8:46 am by Dr. Roy Schestowitz

The Patent Trial and Appeal Board (PTAB) is defended by the Supreme Court (Oil States decision), but will patent extremists manage to scandalise and oust judges in another branch?

Watchtroll

Summary: The Court of Appeals for the Federal Circuit (CAFC) is attacked by patent maximalists whenever it suits them, is occasionally being misrepresented by the patent microcosm and is generally coming under intense scrutiny by the perishing ‘industry’ of patent parasites and trolls

THE Court of Appeals for the Federal Circuit (CAFC) is the basis/substance of Section 101 caselaw, which the USPTO follows. CAFC, in turn, adopts decisions other than its own, notably those of the Supreme Court, e.g. Alice and Oil States. As we shall show tomorrow, the USPTO is altering a few things in its guidelines, based on CAFC and the Supreme Court; it’s nothing radical, but patent maximalists do try to make it sounds profound and revolutionary. They hope to affect the outcome that way.

The Federal Circuit Bar Association (FCBA) is a group of patent maximalists. As per this promotion from earlier today, there’s a session coming later this month:

The Federal Circuit Bar Association (FCBA) will be offering a webcast entitled “Last Party Standing: Who Has Standing to Appeal Administrative Decisions to the Federal Circuit?” on May 22, 2018 from 3:00 pm to 4:30 pm (EST).

FCBA being FCBA, it will be speaking for patent maximalists rather than actual patent judges from CAFC. This is expected. We expect nothing else.

In this age of Trump/Trumpism we’re seeing many attacks on judges (like their President). The latest attacks on CAFC — not just on PTAB — come from cowboy hats-donning self-acclaimed "inventors" (who used terms like “draining the swamp” in relation to USPTO Director Michelle Lee). They spewed this out at Watchtroll 5 days ago. So the site has just attacked CAFC (a high court) yet again. We’re sure that the judges at CAFC will be very impressed. This only further alienates them. Watchtroll habitually calls for firing or resignation of judges (CAFC judges included) if they 'dare' say something that patent maximalists do not wish to hear. It’s mob mentality. Theodore Chiacchio does the same (4 days ago), albeit more politely. Writing about the decisions of CAFC is OK, but bashing the decisions, the courts and even individual judges is not honourable. It’s not illegal, but it’s disrespectful and it paints these attorneys/pundits as people who disregard the law except when a decision suits them.

So putting aside these nasty attacks, let’s look at what CAFC actually did do. We don’t wish to feed/entertain insults or words about them.

First of all, patent lawyers engage in misconduct again. Referred to as “unclean hands”, this was covered by Watchtroll and others before it [1, 2]. Ashley M. Winkler (Finnegan, Henderson, Farabow, Garrett & Dunner, LLP) wrote that “CAFC Affirms District Court Decision Finding Unclean Hands In Gilead V. Merck” and here’s the substance of the argument:

In Gilead Sciences, Inc. v. Merck & Co. Inc., Nos. 16-2302, 16-2615 (Fed. Cir. Apr. 25, 2018), the CAFC affirmed the district court’s finding that misconduct attributable to Merck barred it from asserting two patents against Gilead under the unclean hands doctrine. This appeal arose from an action relating to treatments for Hepatitis C, and more particularly Gilead’s treatments Solvadi® and Harvoni®, which use the compound sofosbuvir. Further discussion of the decision can be found on Finnegan’s Federal Circuit IP Blog.

Another CAFC decision was covered by Charles R. Macedo and Jung Hahm, who oddly enough chose Watchtroll as a platform:

The decision on appeal turned on the construction of a term of art, “non-exhaustive search,” in the field of database search algorithms. Below, the Board’s construction was supported by the specification and the Board’s factual findings—based on objective evidence and credibility determinations—on what “non-exhaustive search” means in the field. Applying its construction, the Board confirmed the patentability of most of the claims challenged in the IPRs. On appeal, the Federal Circuit panel reversed the Board’s construction, vacated in part and remanded those IPR decisions with respect to claims using this term of art. Google LLC v. Network-1 Techs., Inc., No. 16-2509, slip op. (Fed. Cir. Mar. 26, 2018) (nonprecedential) (“Opinion”).

Algorithms are abstract as per Section 101 and should thus be unworthy of patents; any patents on these (even if they call the said database/s “blockchain” or whatever) ought to be voided by the court. In this particular case CAFC seems to be even tougher than PTAB. It makes it quite interesting.

Another blog of patent maximalists spoke about the rare situation “[w]hen two decisions are released simultaneously [and] how [one can] treat the precedential value of the cases relative to one another” (like a chronology rule of thumb). The Supreme Court often releases decisions in tandem and it recently released two decisions — both pertaining to PTAB — simultaneously. To quote this post, which actually focuses on CAFC:

The tension between the cases in this situation is actually fairly small, but the setup raises an interesting question in my mind. When two decisions are released simultaneously, how should we treat the precedential value of the cases relative to one another? My initial answer is that the cases should be treated as we would a plurality Supreme Court decision.

Veering away from the simultaneous release — would it matter if one were uploaded to PACER (the Docket) a few hours before the other? Under Federal Rules of Appellate Procedure R. 36, “a judgment is entered when it is noted on the docket.” The rules do not, particularly define priority of precedent, and I have not seen any Federal Circuit precedent on-point. Supreme Court becomes precedent immediately upon release. Federal Circuit decisions should seemingly have the same result by Default.

If Justices’ decisions (such as Oil States, which we shall cover later) become precedents “immediately upon release,” then it must spell trouble to a lot of cases against PTAB, including the publicity stunt which is class action (also to be covered later and separately).

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